What is the meaning of right? Right in the Constitution of Iran
What is the right?
What is the meaning of right written by Behnam Mohtarami
Different meanings of right
There are words in the language whose semantic load is heavy and diverse. Right is one of these words. The meaning that this word induces in our minds is so fluid and so rich and complex that it usually takes our time, patience and complete precision, and we may be pleased with its use with a vague and unclear idea. You have heard this famous sentence that says: "Rights are to be taken, not given." It is less certain that the speaker and the listener of this sentence clearly know what they are talking about. What is it that can be taken and not given? We know that talking about something good and desirable is beneficial and pleasant. We want something, but the image that is imprinted in our mind is very unclear and ambiguous. The word "right" is mostly used as a noun, both in general exchange, that is, in the language of street and market people, and in the language of writers and scholars. In the above sentence, "right is to be taken, not to be given." But when we say "the truth is bitter", this word is placed in the position of an adjective. In Arabic, haq is also used as a verb, which we do not need to discuss in the present discussion. It is said that "so-and-so was not entitled to what they did to him"; That means this was not his punishment. We read Rumi's famous poem in Masnavi:
Who can tell the truth except under the quilt with you, the infuriating fire of the hem
That is, because you are a person, you cannot tell the truth openly. Elsewhere in Masnavi Haq is used in the absolute meaning of truth and against falsehood:
Zanke, who has no right to be idle, buys the heart as a fool with the scent of gold.
The one who says the right sentence is a fool and the one who says the false sentence is a fool
The poet's intention is that people's thoughts and beliefs are not all in line with the truth, nor are they completely against the truth. Believing and accepting all of them as truth is a sign of crudeness and stupidity; As invalidating and rejecting all of them is a sign of cowardice and cruelty. When we use the word truth about God, we have the same meaning in mind because God is absolute truth and pure truth. Khaqani said in his praises:
Because Adam and David are your caliphs, you are protected from the right of your rights, which is the refuge of your creation
In the first page of this verse, Haq means God. The poet addresses the king and says, "You are God's caliph, just as Adam and David were his caliphs." In the second stanza, which is again addressed to the king, he adds: The truth brings refuge to you because you are the refuge of all people. What is this second right that places itself under the protection of the king? Here, the meanings that we listed for the right: "deserving", "right", "truth" and "God" are no longer correct. The right in this passage from the verse comes close to the same ambiguous concept in the phrase "right is to be taken, not given".
Ragheb Esfahani has said in the vocabulary of words of the Qur'an that right basically means conformity and agreement. God who creates things according to wisdom is called Haqq, and a word, action or belief that is in accordance with reality is Haqq. But it is believed that conformity and agreement, as stated in the encyclopedia of Islam, are secondary meanings of haqand and not its main meaning. The main meaning of the right is "proof". Beidawi says in his commentary: God is called the truth because his lordship and divinity are constant and the proof of other things is also the same (and the realization of things), and this is why the truth is usually defined as the constant existence (Hawalammujud al-Hadith).
Questions about the right
The apparently simple question "What is right?" It leads to other basic questions. The set of these questions, which were relevant to thinkers in every period and time, are still relevant in our era, and discussions about them continue.
The contemporary philosopher Isaiah Berlin, in a conversation with Brinamegi, gave a list of questions that follow the question "What is right?" It is imprinted in the human mind. It is better to quote a part of the conversation of these two famous thinkers:
Maggie: We take these facts for granted that all human beings are created equal and their creator has granted them certain inalienable rights, including the right to life and liberty and the pursuit of happiness...
Berlin: Thank you, very well, rights! What are rights? If you ask an ordinary person in the street what exactly is right, he will be confused and will not be able to give a clear answer. He may know what it means to trample on the rights of others, or what it means that others deny or ignore his right to a certain thing; But what exactly is this thing that is violated or denied? Is it something you get at birth or inherit? Is there something that sticks out to you? Is it one of the inherent characteristics of humans? Is it something someone gave you? If so, who? in what order Is it possible to grant rights? Is it possible to revoke the rights? Who can deny? By what right? Are there any rights that give or take away some other rights? What is the meaning of this word? Can you lose a right? Is there a right that is an inherent part of your nature like thinking or breathing or choosing this and that? Is this what is meant by natural rights? If this is the case, what is the purpose of "nature" in this sense? And how do you know what these rights are?
Right in the Constitution of Iran
Ambiguity in the meanings of words is not a problem as far as speeches and literature are concerned, and even the veiled bride likes the dark and enlightening poetry of Hajla Abham more. But ambiguity in a scientific and legal text has another form. For example, the Constitution of the Islamic Republic of Iran, which is the most serious and fundamental statement of the system and its elements, uses this word in several cases, examples of which are given below:
Actually, the third part of the law (paragraph 14) emphasizes on the "all-round rights of men and women". Actually, the 20th speaks of the people of the nation enjoying "all human, political, economic, social and cultural rights".
Actually, it is stated in the 34th: "Litigation is the inalienable right of every person and anyone can refer to the competent courts for the purpose of litigation. All the people of the nation have the right to have such courts available, and no one can be prohibited from the court that he has the right to refer to according to the law. The sixty-seventh principle obliges the representatives of the people in the Islamic Council to take an oath to "protect the rights of the nation". Article 121 obliges the president to "support the right" and support "the freedom and dignity of individuals and the rights recognized by the constitution for the nation" under an oath.
In the 154th principle, it is stated that the Islamic Republic of Iran "recognizes the government of truth and justice as the right of all the people of the world".
This group of principles of law proves "right" or "right" for people. On the other hand, the 40th principle of the law says: "No one can make the exercise of his right a means of harming others or encroaching on public interests."
So we return to the question we had first: "What is the right?" What are we talking about? And what do we mean by negation and proofRight: privilege and discretion
Now we bring these two famous verses from Masnavi Jamjam Ohadi Maraghai:
It is compulsory for a person, his first right is an absolute obligatory right
After that, it is the mother's right, and the father's, and that teacher's, king's, and prophet's right
Here, the poet talks about six "owners of rights" and puts us in front of the question that we raised at the beginning of the discussion. What is it that God, king and prophet have, father, mother and teacher also have. And the poet considers it obligatory to observe it? With a little reflection, we realize that here we are talking about a privilege that the collective conscience of people recognizes and accepts, and because it is so, the poet calls us to observe it.
A person is "privileged" for God, the prophet, the king (government), parents, and teachers, which everyone should respect. "Right" means that everyone is obliged to observe it. Here, the meaning of truth is no longer compared to blasphemy, falseness or invalidity. Here is the right to deal with the task. When we talk about the right of ownership, we mean the privilege that someone has about a certain property and others do not have that privilege. Among all the people, the owner of the house is the only one who can occupy it in any way he wants, choose a house there himself or leave it to someone else, even destroy it or transfer it to someone else, and others should respect his occupations and from Avoid tampering with his property. This privilege is interpreted as "dominion and authority" in legal language.So, if we want to provide a precise definition of the right - in the sense that we are discussing - we must say that the right is the dominion and authority that is recognized in a certain society for a human being against other humans, or for a human being against objects: The right of an individual against other people, such as the right of a creditor against a debtor, the right of a woman, etcHusbands against each other, the rights of parents against their children, and the rights of humans against things, such as the owner's right to the houses he bought and the tenant's right to use the houses he leases. In this sense, it puts a very broad right in perspective, which includes the right to reject and accept, the right to act and refrain from acting (doing and not doing). Thus, when talking about an individual's right to make a deal or refuse it, the right to divorce for a husband or wife, the right of a judge to investigate the accused, the right to manage and control the public news media for the government, or the right to monitor elections for the Guardian Council, there is an idea of privilege and Free will is imprinted in the human mind.
Right in the eyes of jurists
The definition of the nature of right as a right and a legal privilege is consistent with the interpretation of Islamic jurists and the analysis of Western scholars such as Spinoza who sees right as the same meaning as power and ability and says that where there is no power, there is no right, and Kant said that the characteristic of right is He knows that it is combined with coercive power and we are other examples of itWe will give such definitions below.Of course, the scope of right in the term of some jurists is more limited than what we had in mind; According to their definition, the right of "actual sovereignty depends on the imagination of both parties" (the right of actual sovereignty is independent of the parties to a single person), so sovereignty must be actual and its idea is based on the assumption of the existence of two parties: one who has the right to benefit from it, and the other who doesThe right is his responsibility and he is responsible for fulfilling it.Another problem with this definition is that it ignores the necessity of the legitimacy of the monarchy and is limited to its actuality. A person who dominates another person by force and forces him to perform an act has gained actual sovereignty over that other person. So, according to this definition, he is considered the owner of the right, and the custom does not accept this meaning. Some other jurists have said that right is a weak rank of property, but a type of property. In this sense, the right includes both objective and religious rights, and in this way, the first problem that we introduced to the previous definition is solved. In this sense, the ownership of the right may be the same, such as the right of mortgage, the right of pledge, and the right of compensation in the estate of the deceased, the ownership of it may be non-identical, such as the right of retribution and the right of custody, which belong to his person.
The attitude of Western jurists
Among the sayings of Western jurists, the closest to the opinion of our jurists is the statement of Uffendorf (1694-1632) who says: Right and dominion are the same thing, with the difference that dominion only refers to the actual possession and occupation and does not clarify what means and how the occupation is obtained. It has been and now that the right implies the meaning of legitimacy and it must be obtained in some wayhas been.Paying attention to the aspect of legitimacy is a point that is also shown in the definitions of other western researchers. The famous English jurist Jonathan (1859-1790) says: The owner of a right is someone who is required by the law to perform an action (or to refrain from doing an action) by another (or others). John Stuart Mill (1873-1806), another English thinker who was a contemporary of Jonathan criticized his definition and called it incomplete and even incorrect. The person who is sentenced to death according to the law, others are obliged to kill him according to the law. So, according to Stein's definition, it can be said that the condemned has the right to be executed, while the application of the right in such a case is contrary to the perception that people have about it. Mill says that the right always implies a benefit for the owner of the right and suggests that it should be stated in Stein's definition that doing an action (or refraining from an action) should be in the interest of the right.
Another group of jurists such as Yering (1818-1892) in the book "The Purpose of the Law" have said in pursuit of the same line of thought: the right is the interests that are under the umbrella of judicial protection. The meaning of "benefits" here is what is called "interest" in the terminology of our jurists and it includes elements and factors such as freedom, health, reputation and access to various material gifts that are effective in improving the condition and well-being of human life. Others have investigated more and did not like this promise; Because, firstly, the right is not the benefit itself, but a means to secure the benefit, and secondly, the right does not always imply the meaning of benefit. For example, the right to punish the criminal does not benefit the judge. We also have cases where there is a benefit in establishing a right, but that benefit does not reach the owner of the right, but a third party. For example, in endowment for public benefits, the benefit does not go to the trustee who has the right to administer the endowment. Trustees of pension funds do not have a personal interest in the administration of those funds, and the position of the executor and guardian in the administration of minor and financial assets is against them, in which cases the executor and guardian do not benefit personally. Zaid hires someone to take care of his old mother. Ajir's obligation is towards Zaid, but the beneficiary here is Zaid's mother, not him. Finally, it has been suggested that the element of power should be mentioned in the definition of the right, but that the element of power should be replaced by the element of benefit in this definition; In this way, "the right is a power based on the law, whose holder can force another to do something or prevent him from doing something by using the law".
An attitude from a newer point of view
Now we look at this discussion from a newer point of view: our predecessors had a difference whether the implication of words on the meanings is an inherent implication or is it an implication arising from the state of the speaker? According to the ancients, words were a kind of naming for things. Man gave a name to everything he saw and remembered it, and the knowledge of man was the knowledge of names. The problem is that we have words in our language that refer to unreal creatures and non-existent beings. These words are obstacles and unreal concepts that we do not have for real in the outside world. When we say red, the tangible and real example of red color exists in the outside world, and also when we say animal, we can see its example outside and specify its characteristics. But words like law, sovereignty, character and right are not of this kind. And therefore, it is not correct to define the right with words that create the idea of a material or economic or spiritual thing in the mind. Because the right is actually an embodiment of a legal "must", that is, it is the imperative aspect of the law, which is in the form of a noun, and this is the origin of the error. Right from the realists' point of view
The lawyers of the American school of realism say that the right is an interpretation that we use to express our predictions about the behavior that the courts may take. For example, when we say "A has the right to take 100 tomans from B", we want to make the listener understand that if the dispute between A and B goes to court, the court will force B to pay that money. Scandinavian realists sometimes go further and say that right has no meaning at all. In the same example above, where we say "A has the right to take one hundred tomans from B", let's assume that B does not accept A's claim and A inevitably goes to court, but vindicating the right in court is not a straightforward and simple task that A's intention is achieved as soon as A goes to court. A must go through obstacles. We have the rules of procedure with which A's motion must be complied with, then we have the reasons to prove the claim that A must take care of them, and then we have the issue of legal rules that must be the basis of the court's ruling. It is not known that A's understanding of the cited rule corresponds to the judge's understanding, and it is not known that the judge will rule in A's favor when applying the rule to the example. A may slip in any of the three stages we mentioned and lose the case. In this case, what is A in his hand? nothing So, where is the right that we claimed for Al-Af and we knew it as something invisible and independent of people's behavior and perception, something superior to the admission and denial of the parties to the lawsuit and beyond the rejection and acceptance of the court judge? It turns out that Haq has no objective reality, contrary to what we have said and heard. The right of an ideal is nothing more than an idea or an imaginary power.
Hart's criticisms
Professor Hart, who is one of the most well-known experts of the analytical positivist school of law, does not accept this view of the realists. Yes, the sentence "A has the right to take a hundred tomans from B" implies the meaning of prophecy. The speaker of this sentence wants to make the listener understand that if the dispute between A and B goes to the court, the court will force B to pay the money. There is no doubt that if someone has a right, such a prediction about him is usually true, but "A has the right..." or "If the dispute between A and B goes to court..." are two different expressions whose contents cannot be considered the same. The second sentence is not the whole meaning of the first sentence. Referring to the court, of course, depends on the existence of a legal system and executive guarantee. When we say "A has the right to take a hundred tomans from B", this sentence conveys a very complicated context to us by irony and implication. It refers to a mandatory legal system with a complex function and a guarantee of its own executions. The system, which is not temporary or transitory, exists right now and it is expected that its existence and validity will continue. The sentence "A has the right to take a hundred tomans from B" does not explicitly say anything about these categories, but according to the old sayings, the language of allusion is more expressive than the language of explicitness. When the referee says "out" during the game, this word indicates the existence of a game with its own arrangements and rules, which both the players and the referee consider themselves bound by those rules, and this commitment is not limited to the present time. It is a stable and continuous commitment that extends into the future. And this is where we said that the sentence "A has the right to take a hundred tomans from B" implies the previous assumption of the existence of a legal system and also refers to specific relationships with a certain rule of that legal system. These meanings are all part of the implicit and binding meaning of the word right, and of course, they appear in our minds in an unclear way. Now if we ask why A has this right? Those assumptions are exposed; Because in the answer, first of all, certain provisions of the law must be mentioned, which stipulate that if a certain thing happens, a certain result will follow from it, and secondly, it must be known that the thing intended by the law has happened in the case of claim A. The person who says "A has the right to take a hundred tomans from B" does not utter these words, but declares the results obtained from a series of unspoken premises. Therefore, the sentence in question is not just a prophecy imagined by American realists. Prophecy refers to the future, but that sentence says something about the present, the ending of that sentence is different from ordinary statements, and this is what distinguishes the right from the simple meaning of expectation or ability. Let's suppose that someone was captured by bandits and tied his hands and feet, and the bandit put his hand on the gold watch of his captive's wrist. If we say that the owner of the watch has the right to keep his watch and not give it to him, we have said a wrong thing and we have used the word right in its correct sense, but we know that the owner of the watch is the prisoner of that bandit and has no power against him. Therefore, neither expectation nor ability can be found in this case, and now it is right. In answering the question why A has the right to take that money from B, other issues are also involved. For example, the existence of a contract between A and B, which is the source of B's obligation and debt to A. All of these meanings are included in the concept of right and are observed in our minds in a semi-clear or hidden form. Now let's assume that the same sentence "A has the right to take one hundred tomans from B" is uttered by the judge of the court after hearing the case, in the position of drafting the judgment. Its meaning will be different from the meaning of the same sentence that is thrown outside the court by people other than Judge Barzban; Whether the judge's speech implies a ruling and order, and the command and determination that comes from the judge's speech does not exist in the speech of others. This description brings us to the points that Professor Hart quotes from Bentham at the beginning of his discussion. Bentham says that words like "right" cannot be considered as a single word that is cut from the system of words, but we should pay attention to the entire sentences in which the word in question plays a role. In other words, the discussion about the word right alone does not lead anywhere. This word becomes meaningful when it is included in sentences such as "Hasan is right" or "So-and-so is right".
Words are signs and symbols that we refer to our perceptions from the outside world by resorting to them and use them for thinking and understanding. It is with the help of these signs that we free our mind from confusion and confusion and with their help we open up our knowledge and transfer it to others. In the meantime, it is more difficult to work with words like "right", "justice", "beauty" and the like, and these words imply concepts that monitor values, and their validity cannot be proven through argumentative or empirical reasoning, but we are against these concepts. We are content with praising or criticizing him, and the meaning of praising or criticizing him is that those conceptsThey are subject to our feelings and perceptions, and because they are so, they cannot have a single inherent meaning - as they thought in the past - so we must consider their various uses and see what kind of perceptions and imaginations the word in question refers to in the context of speech. The work is done. In this way, we will not be faced with a single meaning, but with a range of meanings and connotations, with intensity and weakness in effects and colors, some of which have more centrality and gravity and can be identified as the main core.
Shatabi, who is one of the most reliable experts in the science of principles in Islam, calls the main core of meanings obtained in this way "composite meaning". In his opinion, it is pointless to talk about what specific meaning the morphemes are used for, but the functions of the word in the context of speech should be paid attention to, and this is called "pursuit of actions"
The main elements are right
According to these considerations, Hart defined three main elements in the concept of right. He says that the concept of right - whatever it belongs to - tells about three things:
A) Existence of a legal system
b) Existence of executive guarantee
c) Existence of authority for the owner of the right to use that enforceable guarantee if he wants and to fulfill the obligation instead of forcing the party.
My right and my right
Now, let's go back to his couplet, the one that enumerates the six rights, there it talks about the rights that must be observed by a person. So I have no right to be the audience of the poem. The owner has the right of parents and I am responsible. I have a duty to fulfill their rights. But when I say that this book is mine, I am the owner of the right. Ohadi's poem shows that sometimes we use right instead of obligation. We are talking about the right, but what we mean is not the right, but the obligation. Our mind sometimes confuses the aspect of proof with the negative aspect and mistakenly calls what is actually the negation of truth as truth.
There are treatises attributed to Imam Sajjad (a.s.) which have been narrated in the books of Hadaf al-Aqool and some other books. In that treatise, which is called "Legal Treatise", it talks about a field of law, which is actually all part of the assignments there. Some jurists refer to the logical connection between rights and obligations and consider them to be the reverse side of every legal relationship. In order for rights and obligations to arise, there must be a bilateral relationship. If Hasan owes Hussain money, Hussain has the right, and in return Hasan is obligated to pay his debt. The right of God and the right of man.
The mixing of these two opposite meanings of the right goes back to the Hebrew root of the word. The Hebrew principle Haq means judgment; Something that has been determined by God, and it is both a "right" or a right that is in my favor and the discretion of which is in my hands, and a "right" or the right of a person whose observance is obligatory on me and I am not in charge of it. "Haqmoali" is opposite to the French word droit or right, and "haqmoali" means devoir or duty. Islamic jurists have interpreted the former as Haqqalanas and the latter as Haqullah. Haqqalanas is a ruling that the implementation or cancellation of which is up to the person himself. He can use it and he can ignore it, like the right of retribution, unlike the right of God, which is not in the hands of man, like prayer, fasting, and divorce for women.
In an effort to resolve this confusion, jurists have said that right has a general meaning and a specific meaning. In the general sense, the right includes all the provisions of Sharia, whether it is established or signed, but in a special sense, it is the right to reign and the authority that is established for someone, and he who is the beneficiary can apply it and can also waive it.
Tahanvi has quoted from Fazil Chalabi that what is meant by haqallah is something that benefits the public, as opposed to haqalanas, which is beneficial to a specific individual or people. When we consider the sanctity of adultery, the purpose of this rule is to preserve the health of the family and society. The ruling has not been established in favor of the husband so that he can waive it and allow another man to have sex with his wife. But when we look at the issue of prohibition of tampering with other's property, this rule is for the protection of the owner of the property and he can ignore it.
This rule is not very clear and effective for distinguishing the rights of Allah from the rights of people, because it can be said that the protection of private property and property is also in the public interest and was established for the benefit of the public. It is not how and from what their relationship with public interestsis the wayRight and duty
Some representatives were of the opinion that if statements for rights are published, statements for assignments should also be assigned. In response to these representatives, Tampin writes: the declaration of rights is also the declaration of duties. If I have a right as a human being, others also have the same right, and since this is the case, my right also means my duty. That means I have the right and I am committed to it.
From this point of view, the conflict between right and duty is like the conflict between husband and wife or between father and child. Just as a child without a father and a wife without a husband does not find meaning, so do rights and obligations. However, some of the thinkers do not accept the existence of the inherent and conflict between right and duty in all cases and say that it is not the case that wherever there is a right, it is obligatory that we imagine a duty against it.
Stein mentions duties that have no right against them and calls them absolute duties, such as the duty of man to God, the duty to refrain from suicide, the duty to refrain from harming animals. It cannot be said that an animal has the right not to be abused.
This category of duties are in front of other hands, which should be called relative duties. Relative duties are in conflict with rights. Every duty must be performed in front of the owner of the right, and the owner of the right can force the obligee to perform his duty. Kelsen, an Austrian jurist, also refers to duties that there is no right against, or if there is a right, there is no specific right holder. For example, tasks related to social welfare and tasks that are determined by criminal and administrative laws are not against a specific right. The owners of the press and the publishers are obliged to respect the chastity of the pen and refrain from publishing obscene publications, and the owners of the income are obliged to pay the tax. However, the obligation to refrain from publishing obscene material or paying a rightful tax does not require another person. Of course, it has been said that the owner of the right in such cases is the government, and those tasks must be performed for the benefit of the government, but Kelsen does not consider this answer to be without responsibility; Because it is difficult to accept that the government, for example, finds a right as a result of the action of someone who publishes publications against modesty. Rather, it should be said that the actions of such persons do not create rights for the government, but create obligations; That is, the government is obliged to stop their work by resorting to the law.
Hoffeld's classification
These narrow views require that the generic sense of the right be separated from its narrow sense. American lawyer Hohfeld says: The traditional division of rights and duties ignores important criteria in the analysis of legal relations. Hofeld classifies legal relations in four forms, in which only one form of right is placed against obligation. This form shows a legal relationship in which one party can force the other party to comply with his right through the law, and the best example of that is the relationship between the creditor and the debtor. But many other rights are not included in this format. I am free and not obliged to wear a hat, but if I want to wear a hat, no one has the right to stop me. This is an advantage for me and where there is an advantage, there is no obligation. Advantage and duty are obstacles. But freedom is other than right in the special meaning of the word; Because the right in this sense is always opposed to the obligation. For example, the owner of a garden has the right to walk under its trees and have fun: in this case, the owner of the right does not face the issue of the obligation of the other party. The owner of the garden has the right to prevent others from not having the right. In other words, "right" is opposed to its negation, that is, "no right". So when we talk about the right of people to choose a lawyer in the courts or the right to choose a job or the right to participate in social gatherings, we actually have an opinion on people's freedom in these matters. It is different (examples of these rights are in principles 24, 25, 27, 28 and 35 of the Iranian Constitutioncan be seen).The third meaning of the right is the power and ability to do something, such as the right of a person to make a will, which we mentioned above, and this is the right of the owner to remove the property from his ownership, the right of the claimant to file a lawsuit and pursue it, and the right of the judge or government officials to do so. their duties (the right of individuals to sue and refer to the court and the right of the parliament tResearch and investigation in all the affairs of the country and the right of parliamentarians to comment on all internal and external issues of the country which are mentioned in principles 34, 76 and 84 of the constitution and are also examples of this meaning). In this sense, the exercise of power by the owner of a right is not associated with an obligation towards it, but it puts the other party in a state of passivity and effectiveness. I have the right to make a will, the judge has the right to judge. Making my will and giving a judge's verdict are the exercises of the power that is placed at our disposal. Power is either public or private. Public power is in the hands of government representatives, in the general sense of the word, which includes executive, legislative and judicial authorities. And private power is in the hands of individuals who are used in the realm of private interests. They refer to public power with the word "authority" and private power with the word "capacity", but in Persian texts, there is no emphasis on the difference between the two types of interpretation, and they usually use each instead of the other. Right is sometimes used in the meaning of immunity and that is the fourth meaning of this word. When I have immunity, others cannot exercise power over me.Parents have the right to take care of their children (Article 1168 of the Civil Code) and no one can take the child from the parents, or from the father, or from the mother who has custody, unless there is a legal reason (Article 1175 of the Civil Code), then this right Parents are actually the immunity that is provided for them against the power of others and so onIt is the right that is mentioned in Principles 39, 164, 38, 33 and 32 of the Constitution of the Islamic Republic of Iran to protect the dignity and sanctity of a person or to prohibit the dismissal of a judge or the prohibition of torture, exile and arrests. Another thing that should be mentioned in the discussion of right as the meaning of power is the need to separate the stage of proving the right from the stage of its implementation. It is possible that a right is legitimate at the stage of proof and illegitimate at the stage of implementation, which means that the owner of a legitimate right, in exercising his right, goes illegitimately, and this is the issue of abuse of the right, which we will discuss separatelyA problem called abuse of rights
Here we read the fortieth article of the constitution that we mentioned earlier:
"No one can make the exercise of his right a means of harming others or encroaching on public interests."
This principle refers to an issue that entered the field of legal science almost a hundred years ago; That is, the discussion of a right whose application and use is a means of harming another or encroaching on public interests. But the other principles we mentioned are related to what is called "personal and political rights and freedoms". These rights and freedoms are mentioned in our current constitution. We have a precedent for it in the previous constitution of Iran, and at the global level, the discussion of these rights and freedoms is included in the preambles of the constitutions of many countries and also in international human rights documents, which date back to more than two hundred years ago. The noteworthy point is that this discussion, both at the national and global levels, has always been raised following profound social and political changes and has set a new page in the life of human societies. For example, the current constitution of Iran was drafted following the Islamic revolution of 1957 and the previous constitution was drafted following the constitutional revolution of 1324 (A.H.) The global terror and the atomic bombing of Hiroshima and Nagasaki; It was, as statedThe rights of human beings and citizens in 1789 in France and the Declaration of the Rights of Virginia in 1776 in the United States were also the result of very wide-ranging revolutionary movements in those two countries. Let's note these few points and then take a look at the issues of the day, which sometimes appear in the form of reports and sometimes in the form of disputes and fights on the pages of Iranian newspapers. We can see that many of these stories and complaints are related to actions and actions that are carried out in the name of the law, and in accordance with the law, that is, under the pretext of enforcing a right that is available to someone or an authority according to the law, and many others are related to the rights that people According to the law, for Qayland himself and from being ignored orThey complain about being trampled on.In the first case, a right has been applied in an extreme and inappropriate manner and has been abused, and in the second case, obstacles have been created in the way of exercising the right and problems have arisen in its use. Cases of complaints also have both aspects; That is, both the issue of violation of the right and the issue of abuse of the right are raised in them. For example, on December 30, 2008, a statement was published by the Bar Association, which said that a judge in one of the courts arrested a lawyer while defending his client and sent him to prison. The lawyers' association protested that the judge "in the capacity of humiliating the lawyer... exercised his power by abusing his position" and did an "irresponsible" act. On the one hand, this story tells about the misuse of the judge's right and authority, and on the other hand, it shows the obstruction and creation of problems in using the accused's right to defend himself.
Moral right and legal right
The privileges that are known to people in the society are not all in the same row and they do not have the same strength and influence. Some privileges are weak, vague, worn out and discolored, which can be easily observed, and sometimes at the level of a compliment, and their non-observance does not provoke a reaction. The discussion of such privileges will be outside the topic of our speech. Some other privileges are so important and rich in content that neglecting them causes a reaction. Sometimes this reaction is from within the human being, in the form of remorse and reproach of conscience, and sometimes it is an external reaction that appears in an unorganized and incoherent way, in the form of condemnation, contempt and hatred of people. In both cases, the consequence of being rude and insolent towards the right is feeling regret and shame, and whoever is not willing to bear that consequence must respect the privacy of the right and keep himself away from the temptation of neglecting it. But many people's feelings of shame and remorse are not strong enough to protect their rights. Therefore, an organized and disciplined response is needed to prevent thugs and rebels. The mechanism of such a disciplined reaction, which of course must be applied from outside, is called "law".
Aristotle describes society's need for a mechanism of coercion as follows: most people "are free from feeling shame and only surrender to fear and refrain from committing ugly acts not because they are ashamed, but because they will be punished". If the lever of the internal reaction was so strong and effective that it prevented most people from encroaching on the privacy of the right, perhaps there would be no need for the existence of "law", and since it is not the case, the law will inevitably come to the fore, forcing the violator to comply with the privilege that he has ignored. or impose on him the recompense of his disobedience and transgressiondoesIn order to protect their city against invaders, ancient people built a wall around it and closed its gates in the evenings. If the wall of the city was sufficient to prevent normal encroachments, it was not sufficient against armed and organized gangs of looters and enemies. They had to build a moat around the city wall and build fortifications like towers and castles next to it to make resistance against those groups possible. The internal reaction of a human being to protect the right is in the rule of the simple city wall, and the external reaction of the law is in the rule of castles and fortifications that the instability and breakability of the wall require its existence.
Privileges that the reaction to their non-observance is in the form of reproach of conscience or condemnation and blame of the people have a moral aspect and reactions of an organized and regulated type are specific to the privileges that the law recognizes and undertakes to protect and support. There are two types of rights: moral rights and legal rightsis dividedLet's read this poem by Hafez that says:
Behjan, the old man, is in his service
Here, the poet talks about the "right to speak". This right to speak, that is, respect for friendship, loyalty and respect towards a friend, is a moral right, just like the right of a teacher, which we saw in Ohadi's poem. Anyone who does not respect this right will of course be criticized and blamed, but his case will not be brought to court, fined or imprisoned. Unlike a person who eats another's property or harms another's life or violates his honor and dignity, the violator in such cases finds himself exposed to legal reactions. Iran's written law sometimes uses the expression "can" or "can't" when it is about proving or denying privilege and authority for someone, which is useful for the meaning of authority. For example, it says: "A woman can independently take possession of her property" (Article 1118 of the Civil Code) or "No one can deprive herself of the right to enjoy or exercise civil rights" (Article 959 of the Civil Code), but most of the time the word right is used explicitly. Takes. For example, it says: "In a separation contract, a woman does not have the right to alimony unless it is stipulated..." (Article 1113 of the Civil Code) or a person who becomes an Iranian citizen will enjoy "all the rights that are prescribed for Iranians" (Article 982) civil law).
The emotional burden of the right
From the interpretation we gave about the various meanings of the word right at the beginning of the chapter, it was evident that the connection between law and ethics is reflected in the use of that word. With all that we have brought about the distinction between moral right and legal right, it is clear that the word "right" has a strong emotional and value meaning. In any case, the right requires its justification beyond the text of the law. A person who claims a right for himself within the limits of a legal system is in fact a competent claimant. For example, he considers himself worthy to monopolize money and prevent others from taking possession of it. He allows himself to ask something from the other and considers him obliged to accept and fulfill his wish. All these meanings have a feeling of justification and appropriateness. According to Kant, "every right has the authority to bind a person emotionally". Not only does the owner of the right see himself on the side of righteousness and justice, and he sees his opponent as a criminal and a fraud, others also see them in this way. Therefore, the legal right awakens a kind of feeling of privileged position and moral superiority in the mind of the owner of the right. The feeling of right to be on one's side is actually a feeling of worthiness and priority. On the other hand, the meaning of obligation and obligation that is in the law can be found in another way in ethics. Both law and ethics require the audience to accept their commands and commands. The addressee is also a poet by his commitment and commitment to those commands and words, and it is with the assumption of this knowledge that the addressee is addressed. In both moral and legal systems, attention is paid to a kind of conscientious persuasion and internal adherence and commitment on the part of the obligee, and it is not in vain that common terms such as commitment and duty are used in both systems. Finally, legal rules are part of social ethics. If today we see things in the legal rules of the past that are not compatible with morality and do not conform to our moral sense today, it means that morality is also subject to change like law. Those legal rules did not conflict with the common social morality at the time. Examples of such outdated rules can be seen not only in slavery but in many other fields such as property, marriage, family relations and even contracts.
In one of his basic writings, Hart divides the right into two types in terms of its origin. A right whose existence is due to a voluntary act of humans. A right that exists without the interference of human will. Hart calls that first right exclusive right. Because it oversees the relations of a certain person against other certain people, and it calls the other a public right. Because it is not reserved for a single person, but the general people of the society benefit from it. The exclusive right, directly or indirectly, is born from a voluntary act, unlike the general right, which does not involve the will in creating it, it is a right that is obtained for humans simply by being human, and therefore it can also be called a "natural right". Because no one had a hand in creating it and no one can take it from man.
When we say that someone has a right, we are actually giving him a qualification; The authority to limit the freedom of another person if he wants. It means to make him do something, or stop him from doing something. In this way, the interference of the right holder in the life of another person is considered justified, as the interference of anyone else to prevent or oppose the right holder is not considered justified. This is the meaning of being right. The exclusive right is sometimes derived from a covenant: simply by his own will he limits his freedom for the benefit of someone else and takes an obligation in return. Sometimes the right is not the result of unilateral will, but the result of a contract that has two parties. These two types of rights arise directly and indirectly as a result of human will. We have another type of exclusive right which is apparently not related to the will of a person, but in fact it is, that is, it is not a direct result of the will, but it is obtained indirectly from a voluntary act. Like family law, which is the product of special relationships resulting from a marriage contract. The presumption of the exclusive right of exclusive freedom is that someone can interfere in the freedom of another person only with the permission of another person, and this permission is referable, like someone who has left another person free to read private letters and notes or use his own car, and this freedom whenever He can take it back if he wants.
Therefore, the concept of due right is a justification for someone's interference in another's freedom, and if there is no such justification, the right will not have a place and a position in the realm of ethics. This article, which is correct about exclusive right, if we look carefully, is based on accepting the equality of people in freedom. Because in all cases where the owner of a right demands something from someone based on his right or is in a position to prevent him, we demand proof from him and he must provide evidence, that is, he must justify his interference in the freedom of another, and this demand for proof And the necessity of justification makes it clear that we believe in the equality of people in freedomwe have.
possess
own
bear
relieve
Equality of people in freedom is the same general right which, unlike the exclusive right, is not a temporary thing resulting from a voluntary action or a special relationship between a person and other people, but it is a natural right that humans are entitled to by simply being human. So, the validity of the exclusive right is actually based on the validity of the public right. When the owner of the right wants to justify himself, he refers to the agreement and contract he had with his party. He wants to arrange minor and major and say: This right of mine is based on a contract that my side freely accepted, and the contract that the parties freely accepted is valid. The results obtained from this small and large clarifies that what makes the contract valid and enforceable is the acceptance of the freedom of the parties to the contract and their equality in this freedom.
Right and freedom
In the discussion above, we talked about human equality in freedom. We explained earlier that freedom is a right that does not have any obligations. It is optional for everyone in front of each other, and no one is superior in using it. Let's suppose that two people in the desert see a thousand toman bill that has fallen a few steps away from them and they want to pick it up. None of them has priority over the other, so that the other is obligated to comply with it, and none of them considers itself obligated in any way to refrain from taking possession of that banknote. This is to say that freedom is the realm of legitimate competition.
Therefore, freedom, when it is considered as one of the meanings of right, is special to right because there is no obligation in front of it. But when they consider the nature of right and freedom, freedom is both rights: the owner of the right is free and others are obliged to respect his exclusive advantage.
#Behnam Mohtarami##The meaning of rights and rights in the Constitution, written by Behnam Mohtaramii#
behnammohtarammi@gmail.com
behnam.mohtarami@yahoo.com
Behnammohtarami
behnammohtarami
short story